IN THE HIGH COURT OF SOUTH AFRICA

1
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
CASE NOS: CA40/2003; CA207/2003
DATE DELIVERED: 2/10/03
In the matter between:
THE STATE
and
MFEZEKO ZUBA AND 23 SIMILAR CASES
______________________________________________________________
________________________JUDGMENT____________________________
PLASKET J:
[A] INTRODUCTION
[1] The matters that are the subject of this review in terms of s304(2)(a) of the
Criminal Procedure Act 51 of 1977 (the Act) were referred to this court by Mr
Cornelius Jacobus Goosen, the resident magistrate at the Stepping Stones
One Stop Youth Justice Centre in Port Elizabeth. In all of the cases, juvenile
offenders had been sentenced to a term of incarceration in a reform school in
terms of s290 of the Act. Problems were experienced in all of these cases in
respect of the placement of the juvenile offenders in the reform school; and
consequently, the juvenile offenders did not commence serving their
sentences within a reasonable time of being sentenced, or at all, spending
inordinately long periods in places of safety, prisons or police cells awaiting
the carrying out of their sentences.
[2] The case of the juvenile offenders was argued by Mr Euijen of the Legal
Resources Centre and Mr Bloem of the Grahamstown Bar, who both acted as
amici curiae. The Director of Public Prosecutions was represented by Mr
Henning and the Members of the Executive Council for Social Development
and for Education, in the Eastern Cape Provincial Government, were
2
represented by Mr Paterson. I record at the outset the appreciation of the
court for Mr Goosen‟s initiative in taking steps to bring to the fore a serious
problem in the administration of juvenile justice in this province, and of the
Legal Resources Centre and counsel for all of the interested parties for their
co-operative and most helpful efforts to assist the court to find a just solution
to the problem.
[B] THE PROBLEM OUTLINED
[3] The nub of the problem is this. No reform school functions in the Eastern
Cape. There are two reform schools in the Western Cape that have accepted
juvenile offenders from the Eastern Cape in the past. They no longer do so
because, according to Mr Goosen‟s affidavit, the „Western Cape Cabinet has
taken a decision not to designate children from other provinces unless a
formal agreement with regard to inter-provincial billing is reached. No such
agreement has been reached‟.1
[4] There is only one reform school that is still willing to accept juvenile
offenders from the Eastern Cape. It is in the Mpumalanga Province. It is
known as the Ethokomalo School. Various difficulties have arisen, however,
that have resulted in juvenile offenders from the Eastern Cape who have been
sentenced to reform school spending inordinately long periods in custody,
either in places of safety, in prisons or in police cells.2
1
See too in this regard, S v Mtshali; S v Mokgopadi TPD 24 August 1999 (case no. 863/99),
unreported, 3-4, where Nugent J referred to the same difficulty in the Gauteng Province.
2
See S v Katu 2001 (1) SACR 528 (E) as an example of the very difficulties that are
highlighted in this case. Despite the strong sentiments expressed by Smuts AJ in that matter,
the situation does not appear to have improved in the Eastern Cape in the more than two and
a half years since his judgment was delivered. In S v Z en vier ander sake 1999 (1) SACR
427 (E), 440h Erasmus J stated: „In sy skrywe van 28 Januarie 1999 voorsien die provinsiale
kommisaris: Korrektiewe Dienste (Oos-Kaapprovinsie) my van „n kommerwekkende statistiek.
Hy deel my mee dat vir die tydperk Julie tot September 1998 daar was 18 juegdiges in die
gevangenisse van die Oos-Kaapprovinsie in aanhouding op afwagting vir verwydering na „n
verbeteringskool was. Van hierdie jeugdiges is alreeds 16 maande in aanhouding. Ek kan my
nie sterk genoeg uitlaat oor die versuim aan die kant van die betrokke staatsdepartemente
om die howe se bevele uit te voer nie.‟
3
[5] It is opportune to set out, at this stage, the legislative framework within
which juveniles are sentenced to incarceration in reform schools. Section 290
of the Criminal Procedure Act provides:
„(1) Any court in which a person under the age of eighteen years is
convicted of any offence may, instead of imposing punishment upon
him for that offence-
(a) order that he be placed under the supervision of a probation
officer or a correctional official; or
(b) order that he be placed in the custody of any suitable person
designated in the order; or
(c) deal with him both in terms of paragraphs (a) and (b); or
(d) order that he be sent to a reform school as defined in section
1 of the Child Care Act, 1983 (Act 74 of 1983).
(2) Any court which sentences a person under the age of eighteen
years to a fine may, in addition to imposing such punishment, deal with
him or her in terms of paragraph (a), (b), (c) or (d) of subsection (1).
(3) Any court in which a person of or over the age of eighteen years but
under the age of twenty-one years is convicted of any offence may,
instead of imposing punishment upon him for that offence, order that
he be placed under the supervision of a probation officer or a
correctional official or that he be sent to a reform school as defined in
section 1 of the Child Care Act, 1983.
(4) A court which in terms of this section orders that any person be sent
to a reform school, may direct that such person be kept in a place of
safety as defined in section 1 of the Child Care Act, 1983, until such
time as the order can be put into effect.‟
[6] In terms of s291(1) of the Act, an order made in terms of s290 lapses „after
the expiration of a period of two years after the date on which the order was
made or after the expiration of such shorter period as the court may have
determined at the time of making that order or, if the person concerned is
discharged in accordance with the provisions of the Child Care Act (Act 74 of
1983), at the time of such discharge‟. In terms of s291(2) and s291(3), the
Minister is empowered, „if he deems it necessary‟, to extend „the validity of an
4
order referred to in subsection (1) for a further period not exceeding two years
at a time: Provided that an order may not be so extended to a date after the
date on which the said person attains the age of 18 years‟.3
[7] Section 1 of the Child Care Act 74 of 1983 defines a reform school as „a
school maintained for the reception, care and training of children sent thereto
in terms of the Criminal Procedure Act, 1977 (Act 51 of 1977), or transferred
thereto under this Act‟. The same section defines a place of safety as „any
place established under section 28 and includes any place suitable for the
reception of a child, into which the owner, occupier or person in charge
thereof is willing to receive a child‟. For all practical purposes, according to Mr
Goosen, a place of safety in the Eastern Cape means a prison.4
[8] It appears to be a practice of long standing to sentence juveniles to an
unspecified reform school, leaving it to the administration to place the
juvenile.5 The procedure that is followed is set out by Mr Goosen:6
‟15. Once I have sentenced a child to a reform school, the probation
officer allocated to the case will forward copies of the pre-sentence
report, court order, birth certificate and medical certificate to Dr van Zyl,
the Head of the Department of Education in Mpumalanga. Dr van Zyl
3
For commentary on s290 and s291 see Du Toit, De Jager, Paizes, Skeen and Van Der
Merwe Commentary on the Criminal Procedure Act Cape Town, Juta and Co: 1987, 28-28A
to 28-33.
4
He stated in his affidavit that, in Port Elizabeth, convicted juveniles awaiting transfer to a
reform school are held either in the North End Prison or in the Enkuselweni Place of Safety.
Of the latter institution, he says: „Enkuselweni is the only secure care facility in Port Elizabeth
with 58 beds. The facility is the only facility for the whole of the Eastern Cape Province. This
means that all 58 beds are usually full and there is no room to hold a child waiting for
designation to a reform school and the child must wait in North End Prison. At North End
Prison these children are usually kept with awaiting trial prisoners and not sentenced
prisoners.‟ See too S v Z en vier ander sake supra, 436d-e in which Erasmus J cited a report
compiled at his request by a member of the staff of the Director of Public Prosecutions to the
effect that „[a]lhoewel daar by navraag aangedui is dat daar plek vir verwysde jeugdiges
beskikbaar is by die inrigtings, neem die administratiewe rompslomp by die Departement van
Welsyn, ten einde „n spesifieke inrigting aan te wys, soms maande en word die jeugdige
intussen in „n plek van veiligheid (baie keer is dit die polisieselle) aangehou‟.
5
R v Langeveldt 1957 (4) SA 365 (C), 365C-E; S v Motsoaledi 1962 (4) SA 703 (O), 704C-G.
6
Mr Goosen‟s evidence is confirmed by a letter from Dr van Zyl to the LRC in which she
stated: „Designation of juveniles are handled between the provincial offices of the education
departments. It means that your application for learners go via your education department to
other provincial offices of education. The above procedures are followed by all the provinces.‟
She also stated: „Mpumalanga Education Department did not receive applications from the
Eastern Province this year and therefore there are no delays in our provincial office.‟
5
would then communicate directly with the probation officer once and I
would have nothing further to do with the matter.
16. I have been advised by Mrs Burrell, Acting Assistant Director of the
Department of Social Development at Stepping Stones that during
2002 Dr van Zyl requested the probation officers to forward all
applications for designations directly to the Eastern Cape Department
of Education who in turn must forward the applications to her
Department. … The Mpumalanga Department of Education in
conjunction with Ethokomala School decides whether or not they will
accept the child and now communicates their response to the Eastern
Cape Department of Education as well as to Stepping Stones. …
17.Once they have accepted the child, the probation officer here
prepares the child‟s release and makes arrangements with the
Department of Social Development to transport the child to the school.
As soon as transport arrangements have been made the probation
officer will contact the school to advise them of the child‟s arrival.‟
[9] It will be apparent from the passage I have cited above that the procedure
involved, from sentence to reception at the reform school in Mpumalanga is a
complicated one involving two provincial departments in the Eastern Cape
Provincial Government, the Department of Education in the Mpumalanga
Provincial Government, as well as the courts. There are any number of links
in the chain that may break. There are also the practical problems of
resources that bedevil the smooth and efficient functioning of the system. 7 Mr
Goosen stated in this respect that the Ethokomala School „will only accept
nine children from each province and then only three at one time. A probation
officer must accompany these children. This puts additional budgetary
constraints on the Department of Social Development who must arrange for
the transport and accommodation of the probation officer‟.
7
For instance, Mr Goosen referred to the problems in carrying out the sentences imposed on
two juveniles, Ayanda Sokanyile and Xholani Tsotso. They received designations to the
reform school in January 2003 but „the Department of Social Development did not have the
funds to transport the children so they are still in prison. I have been advised by Mrs Burrell
that they will be transferred to the school before the end of May 2003 almost two years after
they were sentenced‟. Their release was ordered by Chetty, Pillay and Sandi JJ on 2 June
2003.
6
[10] Mr Goosen and the LRC have made numerous attempts to ascertain
whether any concrete plans are afoot to address this problem that everyone to
whom they have spoken agrees requires attention. They have ascertained,
however, that the Department of Education in the provincial government
intends to establish a reform school in the province but this is still in the early
planning stages. Indeed, the Acting Director: Special Needs in Education, in
the department wrote to the LRC that this would be a long process „requiring
long consultations with sister departments and various stakeholders in
education‟ and that the process „also requires proper planning because it
involves huge financial implications which may require resource mobilisation
even outside government‟.
[11] When this matter first came before a full bench, Chetty, Pillay and Sandi
JJ issued orders releasing from custody 25 juvenile offenders on the basis
that their sentences had lapsed in terms of s291(1) of the Act or were about to
lapse; directing the Head of the Department of Social Development in the
Eastern Cape Provincial Government to produce a copy of the application for
designation of one Ignatius Stevens, a juvenile offender who had been
sentenced to a period in reform school, together with copies of any
correspondence sent or received in this respect; directing the Head of the
Department of Education in the provincial government to compile a report,
within ten days, on what steps had been taken to secure the designation of
Stevens to a reform school, and if this had been unsuccessful, what further
steps were envisaged in order to achieve his designation; directing the
Registrar, on receipt of the report or on the expiry of the ten day period, to
place the record of proceedings before a judge in chambers for further
consideration of the steps necessary to enforce the sentence imposed upon
Stevens; directing the Heads of the Departments of Social Development and
of Education in the provincial government to submit reports to the Registrar,
within a month of the date of the order, on various matters set out in the order,
and which I shall quote below; and postponing the matter to 11 August 2003
for consideration of the various reports and the further conduct of the matter.
7
[12] The Head of the Department of Social Development was directed to
report on:
„8.1.1. The total number of juvenile offenders currently incarcerated in
“places of safety” in the Eastern Cape Province awaiting transfer to a
reform school.
8.1.2. The ages of such juvenile offenders, the places where such
offenders are currently held, and the dates on which they were
sentenced.
8.1.3. Whether designations have been applied for for such juvenile
offenders and if not, the reason(s) therefore and the steps that are
being taken/envisaged to remedy the situation.
8.1.4. In those cased where designations have been received for the
juvenile offenders concerned, why the transfer to the designated reform
school has not taken place and what steps are being taken to ensure
that such transfer does take place.
8.1.5. The number of juveniles who are sentenced to reform school on
average per year in the Eastern Cape, based on the last five years
statistics in this regard, or the best available information.‟
[13] The Head of the Department of Education was directed to report on:
„9.1.1. How many requests for designation are received from the
department of social development on behalf of juveniles for placement
in reform schools per year on average, based on the statistics for the
last five years or the best available information in this regard.
9.1.2. How many requests for designations are currently unprocessed;
the reason(s) therefore and the steps being taken or envisaged to
remedy the situation?
9.1.3. What other options are available for the accommodation of
juvenile offenders sent to reform school in the Eastern Cape, apart
from placement in the Ethokomala Reform School in Mpumalanga?
9.1.4. If there are no other options available for the placement of
juvenile offenders in the Eastern Cape apart from the arrangement with
Ethokomala, what steps have been taken or are envisaged to secure
such facilities?
8
9.1.5. When is it envisaged that a reform school will be established in
the Eastern Cape Province and what is the expected time table for its
establishment?‟
[14] The report on Stevens was not written and submitted because Stevens
escaped from the place of safety where he was being held awaiting transfer to
the reform school, a designation for such a transfer having been made on 10
June 2003. Stevens was apprehended and was transferred to the JJ
Serfontein High School (apparently a school of industry) in Queenstown, in
terms of s34(4) of the Child Care Act 74 of 1983. The case of Stevens and
certain other individual cases will be dealt with below.
[15] The Department of Education has filed two reports in its attempt to
comply with paragraph 9 of the order of 2 June 2003. The Department of
Social Development has failed to report at all. This failure is unacceptable.
Orders of courts must be obeyed. It is not open to a person against whom an
order has been made to ignore that order because he or she thinks that it
should not have been made in the first place. That is trite law. It is now
entrenched as a constitutional obligation: s165(5) of the Constitution provides
that an „order or decision issued by a court binds all persons to whom and
organs of state to which it applies‟.8 Obedience to court orders is „fundamental
to any constitutional democracy of the kind we aspire to‟.9 Those in
government who disregard court orders „are destroying the constitutional
democracy that enables them to govern. They then bear the responsibility for
betraying the ideals of those who struggled to enable them to be where they
are‟.10
8
The courts in this province have, on a number of occasions over the past few years,
commented on the failure of organs of state to obey court orders. See, for instance, Mjeni v
Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (Tk); East London Transitional
Local Council v Member of the Executive Council of the Province of the Eastern Cape for
Health [2000] 4 All SA 443 (Ck); Somyani v Member of the Executive Council for Welfare,
Eastern Cape SECLD undated judgment (case no. 1144/01) unreported; Ngxuza and others v
Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and
another 2001 (2) SA 609 (E).
9
Ngxuza’s case supra, 632B.
10
Somyani’s case supra, 3.
9
[16] By now, the Department of Social Development – formerly known as the
Department of Welfare – should know better. We trust that its legal
representatives in these proceedings will pertinently bring to the attention of
the Member of the Executive Council and the Permanent Secretary of this
Department the displeasure of this court. We note, however, the undertaking
of cooperation in this matter, when it came before us, which marks a welcome
change.
[17] The first report filed by the Department of Education stated that statistics
were not readily available „due to lack of proper system for dealing with cases
of children in conflict with the law‟ but that an inter-departmental task team
had been established and would be „tracking all information regarding the
matter‟. The report also stated that the department was „in the process of
establishing a reform school. Buildings have been identified for possible
utilisation for this venture and that this can only realistically come into
operation at the beginning of 2004‟.
[18] The second report, dated 22 July 2003, does not contain the type of detail
required by the order made on 2 June 2003. By and large, it confirms the
evidence of Mr Goosen as to the nature and scope of the problem of the
proper implementation of juvenile justice in this province and elsewhere in the
country. It also confirms the establishment of the task team referred to in the
report of 13 June 2003. It is clear that the problem is receiving attention within
the provincial and national spheres of government and that efforts are being
made to coordinate the response to the problem. The report concludes by
mentioning two important developments in the Eastern Cape. They are set out
as follows:
„The school of industry currently catering for boys will be converted to
accommodate girls. A costing has been completed. There are plans to
establish a reform school within the province, already approved in
principle by [the] MEC. A task team is currently working on this project.
The general idea is to provide a facility that is consistent with the
demands of [the] Eastern Cape. The province is in the process of
finalising Phase 2 [of the] plan of the project.‟
10
[19] These reports do not comply with the requirements of paragraph 9 of the
order of 2 June 2003. As a result of this and the complete failure of the
Department of Social Development to report, Mr Euijen has argued that it is
necessary for a more detailed and focused order to be made in respect of the
state of juvenile justice in the province and how the authorities plan to improve
it.
[20] It has been stressed by the courts that a sentence of incarceration in a
reform school is, in its own right, a heavy sentence.11 It is generally
considered to be a useful alternative to direct imprisonment, being intended to
be less severe in its impact on the juvenile offender than a sentence of direct
imprisonment and having less deleterious consequences for the juvenile
offender.12 Despite this, sight should not be lost of the fact that such a
sentence is, nonetheless, a punishment, a point made by Knoll AJ in S v M an
‘n ander13 in the following terms:
„Na my oordeel, ondanks die bewoording van art 290(1) van die
Strafproseswet wat verbeteringskool as „n alternatief tot “straf” beskou,
sluit die verwysing na „n verbeteringskool inderdaad elemente van straf
in en kan dit as „n swaar straf ervaar word. Daar behoort derhalwe,
onder andere, oorweeg te word of die erns van die misdaad so „n straf
vereis in die omstandighede van elke geval. Dit is, myns insiens,
onvanpas om „n verbeteringskool bloot te beskou as „n inrigting waar „n
jeugdige in „n gedissiplineerde opset sy skoolloopbaan mag bevorder
11
See S v Zungu and another 1962 (1) SA 377 (N), 378C-D in which Milne J stated that „to
send a person to reform school is a drastic measure‟ and that the „greatest care should be
exercised before such a sentence is imposed‟. In S v Mkwanazi 1969 (2) SA 246 (N), 247B,
Henning J held that to „send a juvenile to a reform school is a serious matter involving
deprivation of his liberty for a prolonged period‟.
12
In S v Willemse en andere 1988 (3) SA 836 (A), MT Steyn JA observed (at 847E): „Die
skepping van verbeteringskole vir die aanhouding van veroordeelde jeugdiges is klaarblyklik
te wyte aan die besef dat sulke instellings „n minder skadelike inwerking op jeugdiges het as
tronke.‟ The learned judge of appeal also stated (at 847I): „In „n verbeteringskool kom „n
veroordeelde jeugdige gewoonlik met minder ervare en minder geharde misdadigers in
aanraking as in die tronke. In „n verbeteringskool is hy in die geselskap van medejeugdiges,
in die troke is hy in die geselskap van volwassenes, vele waarvan reeds geharde en
deurtrapte misdadigers is. So „n omgewing is uiteraard meer benadelend vir „n jeugdige as
dié van „n verbeteringskool.‟
13
1998 (1) SACR 384 (C), 386c.
11
sonder om die strafelement in ag te neem wat „n verwysing na so „n
inrigting sal inhou.‟
[21] Both aspects of this case – the individual cases and the more general,
systemic issue – involve the infringement of a number of fundamental rights.
As all of those affected now and in the future are, by definition, younger than
18 years old, s28 of the Constitution -- its set of fundamental children‟s rights -
- is of application. In particular, the following rights of children are infringed or
threatened by the failure to provide mechanisms for the proper and prompt
implementation of sentences of detention in a reform school: the right of every
child to be „protected from maltreatment, neglect, abuse or degradation‟; 14 not
to be „detained except as a measure of last resort, in which case, in addition
to the rights a child enjoys under sections 12 and 35, the child may be
detained only for the shortest appropriate period of time, and has the right to
be … treated in a manner, and kept in conditions, that take account of the
child‟s age‟;15 and to the paramountcy of the best interests of the child „in
every matter concerning the child‟.16 In addition, the detention of a child, in a
type of limbo, awaiting the commencement of his or her sentence, in the
circumstances that have been set out above, constitutes an arbitrary
deprivation of freedom in violation of s12(1)(a) of the Constitution.17 These
circumstances also disclose, in my view, a violation of the right to human
dignity, protected by s10 of the Constitution and a violation of the right to a fair
trial generally.18
[22] The legal issues that arise for determination before the individual cases
can be dealt with are whether the court has the power, in terms of s304 of the
14
Section 28(1)(d).
15
Section 28(1)(g).
16
Section 28(2).
17
The deprivation of freedom is arbitrary because in circumstances in which juveniles are
held for long periods, it is purposeless and inflicts hardships on the juveniles that may be
disproportionate to their crimes. Their incarceration in these circumstances also does not
serve the purpose of the punishment imposed on them by the court.
18
Section 35(3). In S v Zuma and others 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC),
para 16, Kentridge AJ held that the right to a fair trial is broader than the list of specific
components of this right set out in the Constitution. In my view, the right to a fair trial must
include the right not to be subjected to a sentence substantially more severe than the one
imposed by the trial court.
12
Act, or of any other law, to review sentences that were competently imposed
but cannot be carried out because of administrative difficulties and whether
the court has the jurisdiction to make, in these proceedings, the orders
relating to reporting by the Heads of the Departments of Social Development
and of Education.
[C] THE REVIEW OF THE NON-ENFORCEMENT OF OTHERWISE
COMPETENT SENTENCES
[23] As stated above, this matter was referred to the High Court in terms of
s304 of the Act. This section provides:19
„(1) If, upon considering the proceedings referred to in section 303 and
any further information or evidence which may, by direction of the
judge, be supplied or taken by the magistrate's court in question, it
appears to the judge that the proceedings are in accordance with
justice, he shall endorse his certificate to that effect upon the record
thereof, and the registrar concerned shall then return the record to the
magistrate's court in question.
(2) (a) If, upon considering the said proceedings, it appears to the
judge that the proceedings are not in accordance with justice or that
doubt exists whether the proceedings are in accordance with justice,
he shall obtain from the judicial officer who presided at the trial a
statement setting forth his reasons for convicting the accused and for
the sentence imposed, and shall thereupon lay the record of the
proceedings and the said statement before the court of the provincial or
local division having jurisdiction for consideration by that court as a
court of appeal: Provided that where the judge concerned is of the
opinion that the conviction or sentence imposed is clearly not in
accordance with justice and that the person convicted may be
prejudiced if the record of the proceedings is not forthwith placed
19
Section 304 must be read with s302 and s303. Section 302 prescribes which sentences are
subject to automatic review. It is noteworthy that in providing that sentences of imprisonment
are subject to automatic review, s302(1)(a) includes as a species of imprisonment detention
in a reform school. Section s303 sets out the procedure for placing the record of review cases
before judges in chambers.
13
before the provincial or local division having jurisdiction, the judge may
lay the record of the proceedings before that court without obtaining the
statement of the judicial officer who presided at the trial.
(b) Such court may at any sitting thereof hear any evidence and
for that purpose summon any person to appear to give evidence or to
produce any document or other article.
(c) Such court, whether or not it has heard evidence, may,
subject to the provisions of section 312 -
(i) confirm, alter or quash the conviction, and in the event of the
conviction being quashed where the accused was convicted on
one of two or more alternative charges, convict the accused on
the other alternative charge or on one or other of the alternative
charges;
(ii) confirm, reduce, alter or set aside the sentence or any order
of the magistrate's court;
(iii) set aside or correct the proceedings of the magistrate's
court;
(iv) generally give such judgment or impose such sentence or
make such order as the magistrate's court ought to have given,
imposed or made on any matter which was before it at the trial
of the case in question; or
(v) remit the case to the magistrate's court with instructions to
deal with any matter in such manner as the provincial or local
division may think fit; and
(vi) make any such order in regard to the suspension of the
execution of any sentence against the person convicted or the
admission of such person to bail, or, generally, in regard to any
matter or thing connected with such person or the proceedings
in regard to such person as to the court seems likely to promote
the ends of justice.
(3) If the court desires to have a question of law or of fact arising in any
case argued, it may direct such question to be argued by the attorney-
general and by such counsel as the court may appoint.
14
(4) If in any criminal case in which a magistrate's court has imposed a
sentence which is not subject to review in the ordinary course in terms
of section 302 or in which a regional court has imposed any sentence,
it is brought to the notice of the provincial or local division having
jurisdiction or any judge thereof that the proceedings in which the
sentence was imposed were not in accordance with justice, such court
or judge shall have the same powers in respect of such proceedings as
if the record thereof had been laid before such court or judge in terms
of section 303 or this section.‟
[24] Mr Henning for the Director of Public Prosecutions has argued that this
court does not have the power, either in terms of s304 or of any other
provision or rule, to review sentences that were imposed by a competent court
and which on the face of it are regular. On this argument, the fact that the
sentences have not been carried out, or that inordinate delays have occurred
in the carrying out of the sentences are not the business of a court of review:
if the juvenile offenders require relief, they must look elsewhere to civil
proceedings for the relief.
[25] The first difficulty that I have with Mr Henning‟s argument is that it
ascribes a limited, values-free, function to the power that is vested in superior
courts to review the proceedings of lower courts. At the heart of the review
jurisdiction is a concern for justice, a concern what is more, for substantive
justice and not merely the trappings of justice.20 Courts concern themselves
with the real world and the concrete effects of the exercise of power on real
people.
[26] When interpreting legislation, courts are enjoined by s39(2) of the
Constitution to do so in such a way that the „spirit, purport and objects of the
20
Section 304(1) states in express terms that the function of a reviewing judge is to ensure
that proceedings of lower courts are „in accordance with justice‟. In s304(2)(a), the reviewing
judge is required to take the steps set out in the section if it appears to him or her that „the
proceedings are not in accordance with justice or that doubt exists whether the proceedings
are in accordance with justice‟. On the importance of the coalescing of law and justice see the
characteristically forcefully comments of Didcott J (in an era in which justice was harder to
come by for many than it is today) in In re Dube 1979 (3) SA 820 (N), 821E-G.
15
Bill of Rights‟ are promoted. The spirit, purport and objects of the Bill of
Rights, insofar as the fair trial rights are concerned, have been set out in the
clearest of terms by Kentridge AJ in S v Zuma and others:21
„That caveat is of particular importance in interpreting s25(3) of the
[interim] Constitution. The right to a fair trial conferred by that provision
is broader than the list of specific rights set out in paras (a) to (j) of the
subsection. It embraces a concept of substantive fairness which is not
to be equated with what might have passed muster in our criminal
courts before the Constitution came into force. In S v Rudman and
Another; S v Mthwana 1992 (1) SA 343 (A), the Appellate Division,
while not decrying the importance of fairness in criminal proceedings,
held that the function of a Court of criminal appeal in South Africa was
to enquire
“whether there has been an irregularity or illegality, that is a departure
from the formalities, rules and principles of procedure according to
which our law requires a criminal trial to be initiated or conducted”.
A Court of appeal, it was said (at 377),
“does not enquire whether the trial was fair in accordance with „notions
of basic fairness and justice‟, or with the „ideas underlying the concept
of justice which are the basis of all civilised systems of criminal
administration‟”.
That was an authoritative statement of the law before 27th April 1994.
Since that date s25(3) has required criminal trials to be conducted in
accordance with just those “notions of basic fairness and justice”. It is
now for all courts hearing criminal trials or criminal appeals to give
content to those notions.‟
[27] The statutory powers of the superior courts are buttressed by its inherent
jurisdiction. That inherent jurisdiction, previously the product of the common
law, is now entrenched in s173 of the Constitution. This section provides that
the „Constitutional Court, the Supreme Court of Appeal and the High Courts
have the inherent power to protect and regulate their own process, and to
21
1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC), para 16.
16
develop the common law, taking into account the interests of justice‟. The
hand of the superior courts is further strengthened by the requirements of the
rule of law, entrenched as a founding value in s1(c) of the Constitution, that
the exercise of all public power (and judicial power is a species of public
power) must not only be in accordance with, and be authorised by, law but
that it must also be objectively rational.22 Courts also now have the express
constitutional mandate to remedy constitutional infringements with appropriate
remedies23 that are just and equitable.24
[28] Even before these powers were conferred upon superior courts by the
interim Constitution and the present Constitution, it was accepted that courts
could review proceedings of lower courts outside of the express terms of s302
and s304 of the Criminal Procedure Act and s24 of the Supreme Court Act 59
of 1959. Obvious examples are the review of part-heard proceedings,25 the
review of convictions that were procedurally proper in all respects but
discovered subsequently to have been erroneous26 and the review of
acquittals.27 The position, as stated by Taitz, is that the „Court retains an
inherent power to restrain illegalities and irregularities in the proceedings of
inferior courts (both civil and criminal) despite two separate and distinct forms
of statutory review having been conferred upon the Court‟ by the Criminal
Procedure Act and the Supreme Court Act28 and that the power of review may
be exercised „despite no irregularity having taken place in the proceedings‟
but where „a miscarriage of justice would occur were the Court not to
intervene by way of its inherent jurisdiction‟.29
22
Pharmaceutical Manufacturers Association of South Africa and another: In re ex Parte
President of the Republic of South Africa and others 2000 (2) SA 674 (CC); 2000 (3) BCLR
241 (CC), paras 17, 20 and 82-85.
23
Constitution, s38.
24
Constitution, s172(1)(b).
25
See for instance Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A);
Ismail v Additional Magistrate, Wynberg 1963 (1) SA 1 (A); S v Burns 1988 (3) SA 366 (C).
26
See for instance S v Taylor 1976 (4) SA 185 (T); S v Shezi 1984 (2) SA 577 (N).
27
See for instance S v Lubisi 1980 (1) SA 187 (T).
28
The Inherent Jurisdiction of the Supreme Court Cape Town, Juta and Co: 1985, 26.
29
Taitz, op cit, 79.
17
[29] In S v Sithole30 Eloff DJP dealt with the power to review a sentence
competently imposed but which subsequently became impossible to carry out.
He held:31
„Volgens hierdie en ander gewysdes is die posisie dan dat, indien daar
'n uitsondering is (en soos reeds gesê ag ek dit onnodig om te beslis of
daar wel is), dit slegs in buitengewone omstandighede is waar die Hof
kennis sal neem van omstandighede wat voorgeval het na die
voltooiing van die verrigtinge, en op grond daarvan die vonnis sal
verander. Daardie omstandighede behoort alleen in aanmerking
geneem te word indien daar nie 'n ander remedie is vir die probleem
onder bespreking nie.‟
[30] Sithole’s case has been revisited, in S v Mahlangu,32 in the light of the
changes to the legal system brought about by South Africa becoming a
constitutional democracy in terms of a supreme Constitution embodying a
justiciable Bill of Rights. That case, like this one involved a lengthy delay in a
juvenile offender sentenced to reform school commencing her sentence. Du
Plessis J held that the court had the power to review the proceedings: 33
„If a competent sentence can for practical reasons not be carried into
effect, and the accused is prejudiced thereby, the proceedings cannot
be said to have been in accordance with justice: the test is not only
whether the proceedings were technically sound, but also whether their
practical effect is just. Section 304(4) of the Criminal Procedure Act
vests this Court with the substantive power to review and set aside a
sentence. The question whether that can be done with reference to
subsequent facts is procedural. In that sense s173 of the Constitution
resolves the question left open in the Sithole case: If justice so
demands, this Court can in a review in terms of s304(4) have regard to
facts which took place after the sentence in the magistrate‟s court had
been imposed. This is also the effect of the judgment in Hansen v The
Regional Magistrate, Cape Town and another 1999 (2) SACR 430 (C).
30
1988 (4) SA 177 (T).
31
At 180I-J.
32
2000 (2) SACR 210 (T).
33
At 211e-h.
18
… I am not convinced that the requirement in the Sithole case that the
circumstances must be exceptional still stands in the light of s173 of
the Constitution, but I need express no final view; the circumstances in
this case are exceptional. If there is another practical and effective
remedy available to the accused, the interests of justice will not require
this Court to act in terms of s304(4). The latter requirement set in the
Sithole case is therefore still binding on this Court.‟
[31] I am in agreement with the views expressed by Du Plessis J. I add, for
the sake of clarity, that in circumstances such as these, s304 of the Criminal
Procedure Act, when interpreted in accordance with the spirit, purport and
objects of the Bill of Rights, and bolstered by the inherent jurisdiction of the
superior courts to regulate their process and develop the common law in the
interests of justice, envisages courts having the power to review competent
sentences where subsequent events, if no interference occurs, would create
or lead to a miscarriage of justice.34 The focus of the courts should, in my
view, be on the justice of the end result, rather than the technicalities of the
process. If I am wrong, and s304 cannot be interpreted in this way, then the
inherent jurisdiction, on its own, vests the court with the necessary power to
remedy such injustices.
[32] There is another way of reaching the same result. That is to be found in
the reasoning of Nugent J in S v Mtshali; S v Mokgopadi.35 Once again, this
case involved the delay between the passing of sentences to a reform school
and their implementation. He held:36
34
See S v Smit [1999] 4 All SA 16 (W), 20a-b in which Nugent J held as to the interpretation
of s304 of the Criminal Procedure Act that „this Court is enjoined by section 39(2) of the
Constitution of the Republic of South Africa 1996 to “promote the spirit, purport and objects of
the Bill of Rights”, which provides in section 35(3) that every accused person is entitled to a
fair trial, which includes the right of “appeal to, or review by, a higher court”. In our view it
would be a parsimonious construction of the Bill of Rights which confined it only to the
immediate consequences of the trial itself. In our view the clear spirit, purport and object of
that section is to ensure that no person is condemned to endure a penalty provided for by the
criminal law without recourse being had to another court in order to correct any irregularity or
injustice which might have occurred in the course of the proceedings which have had that
result‟.
35
TPD 30 August 1999 (case no. 863/99) unreported.
36
At 5.
19
„There can be little doubt that the magistrates concerned made the
orders in the genuine, but mistaken, belief that the sentencing option
which was accorded to them by s290(3) of the Act could and would be
put into effect. I have no doubt, too, that they would not have exercised
their discretion in the manner in which they did if they had been aware
that the offenders would, instead of being sent to reform school within a
reasonable time, be left in prison for an inordinate length of time, and
with no certainty as to their future. There was no suggestion that this
might occur in the pre-sentencing reports that were placed before them
by the probation officers. In my view the proceedings were not in
accordance with justice if the magistrates concerned, through no fault
of their own, made orders founded upon a misapprehension as to the
nature of the consequences that would follow, which is what occurred.‟
[33] I find that, both on the basis adopted by Du Plessis J in Mahlangu and on
the different basis adopted by Nugent J in Mtshali and Mokgopadi, this court
has the jurisdiction to review the sentences of juvenile offenders sentenced to
reform school in circumstances in which they have waited for unreasonably
long periods for their sentences to be put into effect.
[D] REPORTING
[34] As a result of the complete failure of the Department of Social
Development to file a report, as directed in the order of 2 June 2003, and the
inadequate reports filed by the Department of Education, Mr Euijen submitted
that orders should be made to direct the Head of the Department of Social
Development to compile the audit envisaged in paragraph 8 of the order of 2
June 2003; the identified members of the Immediate Action Plan to report on
the progress that has been made in finalising the designations and transfers
of the named individuals in the report of the Assistant Director: Special Needs
in Education; the Head of the Department of Education to disclose the details
of the Department‟s short, medium and long term plans for the incarceration
of juvenile offenders sentenced in terms of s290(1) of the Criminal Procedure
Act as well as the anticipated dates of implementation of the various phases;
20
that the task team working on the establishment of a reform school in the
province be identified and submit regular reports to the Judge President and/
or the inspecting judge of prisons, until the reform school is established; and
that the matter be postponed so that these reports can be filed.
[35] In the light of the attitude taken by the MECs for Education and of Social
Development it is not necessary to make an order in these terms: Mr
Paterson, who appeared for them informed us that his clients would submit
such reports if a request was made by us for them to do so, and that in these
circumstances it was not necessary for us to make such an order. It was also
agreed between the parties that these reports would be filed by 20 October
2003.
[36] We are appreciative of this approach to the issue. It is, however,
necessary to say something about the power of the courts to make orders
along the lines suggested by Mr Euijen. This is necessary because the issue
is bound to come before the courts in the future and because it may appear to
be an unusual remedy.
[37] The positive obligations that the Constitution places on the State – to
„protect, promote and fulfil‟ fundamental rights37 – means that in proper cases,
new approaches to remedies are called for. The „usual‟ remedies, such as the
declarator, the prohibitory interdict, the mandamus and awards of damages
may not be capable of remedying, or appropriate to remedy, systemic failures
or the inadequate compliance with constitutional obligations, particularly if one
is dealing with the protection, promotion or fulfilment of rights of a
programmatic nature. Because courts are directed to grant appropriate relief
when a right in the Bill of Rights has been infringed or threatened, 38 and such
relief must in addition be just and equitable,39 judicial innovation may be
necessary to properly and effectively remedy constitutional infractions by
37
Constitution, s7(2).
38
Constitution, s38.
39
Constitution, s172(1)(b).
21
fashioning new remedies: in Fose v Minister of Safety and Security40
Ackermann J stated that „where so few have the means to enforce their rights
through the courts, it is essential that on those occasions when the legal
process does establish that an infringement of an entrenched right has
occurred, it be effectively vindicated‟; and that „the courts may even have to
fashion new remedies to secure the protection and enforcement of these all
important rights‟41
[38] One of the remedies that has been developed and utilised in countries
that, like South Africa, are committed to the values of human dignity, equality
and freedom, is the structural interdict, a remedy that orders an organ of state
to perform its constitutional obligations and report on its progress in doing so
from time to time.42 This remedy has been recognised, and accepted as a
competent remedy in appropriate cases, by the Constitutional Court in
Pretoria City Council v Walker43 and in Minister of Health and others v
Treatment Action Campaign and others (1)44 in which the court held explicitly
that its power to grant mandatory relief „includes the power where it is
appropriate to exercise some form of supervisory jurisdiction to ensure that
the order is implemented‟. The remedy has also been granted in this Division
in Ngxuza and others v Permanent Secretary, Department of Welfare, Eastern
Cape Provincial Government and another.45
[39] I would venture to suggest that, as a remedy, the structural interdict is
particularly suited to a society committed, as ours is, to the values of
40
1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC), para 69. See too Gerber v Voorsitter:
Kommittee oor Amnestie van die Kommissie vir Waarheid en Versoening 1998 (2) SA 559
(T), 570E-F.
41
Para 19.
42
For but three examples of such remedies in other jurisdictions see Brown v Board of
Education of Topeka 349 US 294 (1954) – the second Brown case – which is regarded to be
the source of structural interdicts in constitutional litigation, the Indian case of Barse v State of
Maharashtra AIR 1983 SC 378 and the Canadian case of Re Language Rights Under s23 of
the Manitoba Act, 1870 and s133 of the Constitution Act [1985] 1 SCR 721. See generally
Chayes „The Role of the Judge in Public Law Litigation‟ [1976] 89 Harvard Law Review 1281,
1298.
43
1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC), para 96.
44
2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 9CC), para 104.
45
2001 (2) SA 609 (E). See too the order in that case dated 20 March 2002 and Ngxuza and
others v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government
and another ECD undated judgment (case no. 82/2000) unreported.
22
„accountability, responsiveness and openness‟ in a system of democratic
governance.46 In this case it would be appropriate because the subject matter
of this litigation is the „core business‟ of the courts, the effective
implementation of the sentences imposed on juvenile offenders. In addition,
the superior courts are the upper guardians of minors. That too would serve
as strong justification for the assumption of a supervisory jurisdiction in a case
such as this.
[E] THE INDIVIDUAL CASES
[40] A number of individual cases of juvenile offenders being sentenced to
reform school have been brought to our attention during the course of these
proceedings. As has been stated above, the order of 2 June 2003 directed
that a substantial number of juveniles be released. There are others, however,
who, for one reason or another, were not included in that order. There will,
doubtless be yet others whose plight will become known to the authorites as a
result of the reports that will be filed, or through other means. They too must
be catered for.
(a) Ignatius Stevens
[41] The case of Stevens was not finalised on 2 June 2003 because he had
escaped from custody. He has since been apprehended and sent to the JJ
Serfontein High School in Queenstown, in terms of s34(4) of the Child Care
Act. The headmaster of the school has expressed his reservations about the
efficacy of the transfer and has stated that a period of six months „should be
sufficient to make an informed and accountable decision‟ on whether Stevens
will be suitable for the school‟s program. If Stevens is not suitable, his transfer
to a reform school can then be considered. This appears to us to be a
practical way of dealing with Stevens and one that is in his best interests. A
order will be made to confirm the arrangement proposed by the headmaster of
the JJ Serfontein High School.
46
Constitution, s1(d).
23
(b) Ashwell Jantjies
[42] Ashwell Jantjies also absconded from custody and so his case was not
dealt with on 2 June 2003 either. He escaped while awaiting departure to the
reform school in Mpumalanga. Jantjies has been apprehended but it would
now be impractical to transfer him to the reform school as originally planned
because he has been convicted again and is awaiting sentence. There is thus
little point in dealing with this matter until he has been sentenced, when the
record of those proceedings and those in issue in this case can be placed
before this court for consideration. An order will be made to reflect this.
(c) Michael August
[43] Michael August also escaped. He is still at large. There is nothing further
that can be done until he is apprehended. His matter will have to be
postponed sine die.
(d) Donovan Jacobs
[44] Donovan Jacobs was a co-accused of Morne Davids and Shaun Bukwa
both of whom were released pursuant to the order of 2 June 2003. Jacobs,
who was sentenced on the same day as them, namely 16 August 2001,
appears to have been overlooked. As more than two years have elpapsed
since he was sentenced, his sentence has lapsed in terms of s 290(1) of the
Criminal Procedure Act. He is entitled to be released forthwith and an
appropriate order will be made below..
(e) Those Mentioned in the Report of 22 July 2003, and Others
[45] The report of the Department of Education dated 22 July 2003 identified a
further five juvenile offenders who had been sentenced to reform school but
whose cases had not been dealt with in the order of 2 June 2003. They are
Ricardo Tiervlei, Siyanda Msizi, Klaas Loggerenberg, Lemiel Ruiters and
24
Lenovan Titus. There are insufficient facts before us to enable us to decide on
these cases. The records of the proceedings in their cases will have to be
obtained and placed before us in due course. An order to this effect, and
including in its terms similar relief in respect of any other similarly placed
juvenile offenders who are identified as a result of the reporting process, will
be made.
[F] THE ORDER
[46] It is recorded that the parties have agreed that, by 20 October 2003, the
Department of Education and the Department of Social Development in the
Eastern Cape Provincial Government will file the reports mentioned in
paragraph [34] above.
[47] It is ordered that:
[47.1] the case of Ignatius Stevens is postponed for six months and the
Department of Education in the Eastern Cape Provincial Government is
directed to file a report, complied by the headmaster of the JJ Serfontein High
School, six months after the transfer of Stevens to that institution, on the
progress of Stevens, together with his recommendations on whether Stevens
should remain there or be transferred to a reform school;
[47.2] the case of Ashwell Jantjies is postponed sine die, and can be set down
for further consideration at the appropriate time;
[47.3] the case of Michael August is postponed sine die, and can be set down
for further consideration at the appropriate time;
[47.4] Donovan Jacobs be released from custody forthwith;
[47.5] the records of the proceedings in the cases of Ricardo Tiervlei, Siyanda
Msizi, Klaas Loggerenberg, Lemiel Ruiters and Lenovan Titus, as well as
those in any other matter that is identified in which juvenile offenders are
25
sentenced to reform school, must be placed before this court for consideration
on 24 November 2003;
[47.6] the matter is postponed to 24 November 2003 for the consideration of
the reports to be filed by the Department of Education and the Department of
Social Development in the Eastern Cape Provincial Government, and any
other evidence or submissions that the parties may file.
___________________
C. PLASKET
JUDGE OF THE HIGH COURT
I agree.
___________________
L.E. LEACH
JUDGE OF THE HIGH COURT
I agree
______________________
J.C. FRONEMAN
JUDGE OF THE HIGH COURT